J.A. began eighth grade at Muirlands Middle School, a public school in San Diego Unified School District in August 2023.
On September 27, 2023, someone reported that J.A. made racist comments referencing “watermelon” and “fried chicken” to a Black classmate. The principal of the School met with J.A., and in a written statement, J.A. admitted that he made the comments but they were a “joke.” The principal documented J.A.’s comment in his student record as a hate incident.
On October 13, 2023, J.A. attended a La Jolla High School home football game. La Jolla High School is located next door to Muirlands Middle School. In the middle of the game, a friend put warrior eyeblack on J.A.’s face. J.A. wore it for about fifteen-to-thirty minutes before leaving the game.
On October 17, 2023, the Muirlands cheer coach reported that there was a group of young boys at the game, at least one of whom had a lot of black paint on his face, and were uttering racial slurs. Both schools investigated, reviewing the surveillance videos and images, and ultimately identified three students as R.R., B.S., and J.A.
Based on these findings, the Muirlands principal met with the three students and gave each student an opportunity to respond. The three students were not given specifics when prompted, but all wrote statements. J.A. reported that he had black paint on his face, but not as much as R.R. B.S. reported that he was with J.A. and R.R. while they had black paint on their faces. R.R., like J.A., also had a recent incident for race-related misconduct, and reported that he had black paint on his entire face.
For these reasons, R.R. and J.A. were given two-day suspensions. The incident reports were filed in the students’ records as hate incidents and R.R. and J.A. were no longer allowed to attend La Jolla High School extracurricular activities for the remainder of the year.
J.A., through his parents, sued the principal and the District’s superintendent alleging violations of J.A.’s rights under the First Amendment of the U.S. Constitution. In addition to monetary damages, J.A. requested two types of relief: (1) enjoin the superintendent and principal from keeping any sanction against J.A. because of his free speech rights, including removing J.A.’s sporting-event ban and the two-day suspension from his school records; and (2) declare that the disciplinary actions taken against J.A. violated J.A.’s constitutional rights.
An injunction is only awarded if the plaintiff can show: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; and (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest.
For the first prong, the plaintiffs must show that J.A.’s free speech rights were violated. First Amendment rights of students in public schools are not absolute. A school does not need to tolerate student speech that is inconsistent with its basic educational mission, for example, even though the government could not censor similar speech outside of the school. In addition, schools may regulate some off-campus student speech.
For example, purely expressive activity, such as music without words, dance, topless dancing, movies, parades, tattoos, and certain paintings, is entitled to full First Amendment protection. However, conduct that can be used to express an idea, but does not necessarily do so, is only protected if the intent to convey a particularized message is present, and the likelihood is great that the message will be understood by those who view it. For example, burning a draft card and wearing a black armband can be done for reasons that have nothing to do with any expression, so require an interpretive step to determine the expressive elements of these processes.
Here, the Court considered that wearing eyeblack was not purely expressive. Wearing eyeblack on an individual’s face can reduce glare from field lights, camouflage a player in a game of hide-and-seek, or be done to passively do what a friend is doing without any intent to express an idea. Therefore, the Court reasoned that the conduct was only protected if J.A. could show that he intended to convey a particular message by wearing eyeblack during the night in question, and that the likelihood was great that those who viewed it would understand that message.
J.A. argued that wearing the eyeblack was done to show “spirit” and “support,” and others would understand this message because half the attendees (around 100 people) wore some sort of face paint, and no one said anything negative or otherwise told him to stop. Further, people often wore eyeblack during other La Jolla High School football games, especially those designated as blackout games.
The Court was not persuaded. The La Jolla High School principal has been the principal for the last decade, attended the game in question, and did not see a single other fan wearing eyeblack on his or her face. He has supervised countless games, and students wear small stickers, but nothing like what the players sport. In reviewing the surveillance videos, only J.A. and his two friends were identified as persons of interest, indicating how uncommon it was to have eyeblack on faces. Furthermore, B.S.’s statement said that one of his friends had “a bunch of eyeblack on his face,” but washed it off after B.S. told him what it meant. When the principal interviewed J.A., he found him defensive, not credible, and not forthcoming as to why he and R.R. had the eyeblack on their faces.
Therefore, the Court concluded that J.A. did not meet the burden of showing that the eyeblack was to convey a particularized message.
The Court also concluded that the other preliminary injunction factors were not met. The two-day suspension on his record did not constitute an ongoing First Amendment injury, nor did J.A. show that irreparable harm was likely to occur without a preliminary injunction. J.A. argued that his school record could affect his acceptance into the school of his choice, but the Court noted that this was especially speculative because students do not apply to public high schools and J.A. made no indication that he planned to apply to a private high school.
The Court denied J.A.’s motion for a preliminary injunction.
J.A. v. Luna (S.D.Cal. Sep. 30, 2024) 2024 U.S.Dist.LEXIS 178023.
Note: While this case involved a public school, high school students at private schools in California have the same free speech as public school students.